State v. Decker
| Decision Date | 08 January 1924 |
| Docket Number | No. 34799.,34799. |
| Citation | 196 N.W. 600,197 Iowa 41 |
| Court | Iowa Supreme Court |
| Parties | STATE v. JACOB DECKER & SONS. |
OPINION TEXT STARTS HERE
Appeal from District Court, Cerro Gordo County; J. J. Clark, Judge.
The defendant, a corporation, was convicted of the crime of nuisance and appeals. Reversed.
Superseding former opinion in 191 N. W. 359.Blythe Markley, Rule & Smith, of Mason City, for appellant.
Ben J. Gibson, Atty. Gen., and W. P. Butler, Co. Atty., of Mason City, for appellee.
DE GRAFF, J.
The defendant corporation was indicted by the grand jury of Cerro Gordo county, Iowa, for the crime of nuisance. The indictment is challenged. The act charged is alleged to be contrary to the form of the statute in such cases made and provided, and therefore it is necessary in the first instance to quote the terms and provisions of the statute upon which the indictment is predicated. The statute reads:
“The erecting, continuing or using any building or other place for the exercise of any trade, employment or manufacture, which, by occasioning noxious exhalations, offensive smells or other annoyances, becomes injurious and dangerous to the health, comfort or property of individuals or the public; the causing or suffering any offal, filth or noisome substance to be collected or to remain in any place to the prejudice of others; the obstructing or impeding without legal authority the passage of any navigable river, harbor or collection of water; or the corrupting or rendering unwholesome or impure the water of any river, stream or pond, or unlawfully diverting the same from its natural course or state, to the injury or prejudice of others.” Code, § 5078.
In passing upon the ruling of the trial court on the demurrer which questions the sufficiency of the indictment, it is necessary to analyze the statutory definition of the crime charged. Clearly the statute classifies nuisances as follows: (1) The erecting, continuing or using any building or other place for the exercise of any trade, employment or manufacture, which, by occasioning noxious exhalations, offensive smells or other annoyances, becomes injurious and dangerous to the health, comfort or property of individuals or the public; (2) the causing or suffering any offal, filth or noisome substance to be collected or to remain in any place to the prejudice of others; (3) the obstructing or impeding without legal authority the passage of any navigable river, harbor or collection of water; (4) the corrupting or rendering unwholesome or impure water of any river, stream or pond, or unlawfully diverting the same from its natural course or state, to the injury or prejudice of others.
Where does the instant indictment classify? It does not charge the erection or establishment of a place, and the trial court so charged in one of its instructions. Let us turn for a moment to the indictment itself. It reads:
“The said Jacob E. Decker & Sons, a corporation, on or about the 1st day of January, in the year of Our Lord one thousand nine hundred and nineteen (1919), in the county and state aforesaid, and upon divers days and times since and up to the finding of this indictment, did, wrongfully and unlawfully, commit, place, deposit, discharge and run into, and cause to be committed, placed, deposited, discharged and run into, a certain creek and stream of water situated in said county, known as ‘Lime creek,’ through a sewer which runs from the defendant's packing plant in the city of Mason City in said county, and empties directly into the said Lime creek, quantities of sewage, filth, offal, acids, and other poisonous substances, to the grand jury unknown; that by reason of the emptying of said sewer into the said Lime creek in said county, as aforesaid, in violation of law, and the committing, placing, depositing, discharging and running into said stream, through said sewer, quantities of filth, offal, acids, and other poisonous substances, in said unlawful manner by the said defendant, Jacob E. Decker & Sons, the waters of the said Lime creek in said county, at the time aforesaid, became and were polluted, corrupted, and rendered unwholesome and impure, and by reason of said pollution and corruption of said stream in the manner aforesaid noxious exhalations, offensive odors and other annoyances were occasioned, all of which being injurious and dangerous to the public health, comfort and property, and contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Iowa.”
[1][2][3] True, the indictment does not adopt the exact language of the statute. This is not necessary, as equivalent language is sufficient. Code, § 5289. Nothing, however, must be left to intendment or implication. State v. Potter, 195 Iowa, 163, 191 N. W. 855;State v. Clark, 141 Iowa, 297, 119 N. W. 719. What essential allegation, if any, does the indictment lack? This is the pertinent question. To allege or charge that a thing is a public nuisance does not state any fact constituting a public nuisance. To allege or charge that a thing is injurious to the public is to state a mere conclusion. The distinction between a public and a private nuisance does not depend on the nature or the character of the thing itself. In Town of Colton v. South Dakota Central Land Co., 25 S. D. 309, 126 N. W. 507, 28 L. R. A. (N. S.) 122, it is said:
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